McGowan v. City of Watertown

Dodge, J. 1. The first assignment of error is predicated upon certain remarks of the court apropos of a discussion by counsel as to the admissibility of an ordinance requiring that drain layers should guard any excavation in the streets by barriers and lighted lamps. Counsel for plaintiff summarized the provisions of the ordinance as requiring that any opening be inclosed with sufficient barriers, etc., and the court said, “that is declaratory of the common law.” Counsel for defendant: “We object to the remarks of the court.” By the court: “The whole question is for the jury to say whether they were negligent or not; a barrier is not necessarily a protection, it must be a sufficient barrier. I have charged it in several cases that have gone up.and been sustained” — to which remarks the defendant excepted. This assignment of error cannot be sustained. This was merely colloquy between court and counsel, instigated by the latter, in which it was certainly competent for the court to test the contention of counsel by inquiry or counter suggestion. While the jury were present, there being no request for their withdrawal, .these remarks were not addressed to them, but their duty was fully explained to them in the charge to consider all the evidence as to the situation, presence or absence of lights and of barriers, and sufficiency of the latter, and therefrom to reach the conclusion whether the street at this place was in a reasonably safe condition for public use. Under the instructions given, the jury were permitted to find the street safe even though no barriers had been erected. The expression of an erroneous opinion by [558] the court to counsel during a discussion, although in the presence of the jury, except in rare cases of obvious prejudice, cannot be ground of reversal when the conclusion finally reached and carried into effect, either by ruling on evidence or instruction to the jury, is correct. Gilchrist v. Brande, 58 Wis. 184, 192, 15 N. W. 817; Stiles v. Neillsville M. Co. 87 Wis. 266, 271, 58 N. W. 411; Baker v. State, 88 Wis. 140, 156, 59 N. W. 570; Owen v. Long, 97 Wis. 78, 83, 72 N. W. 364; Brown v. Warner, 116 Wis. 358, 362, 93 N. W. 17. In such discussions it is essential that the' court have the fullest opportunity to understand and test positions assumed by counsel, and, to that end, to put hypothetical questions, suggest counter arguments, and the like, though of course this should be done carefully when in the presence of the jury, and in such a way as not to convey to them an impression that the court has formed an opinion on a subject properly within their province. Another reason why this assignment of error must be overruled is that the rule of law announced by the court- that an excavation such as this in the traveled part of a highway is a defect unless guarded by sufficient barriers is fully sanctioned by the decisions of this court. Kenworthy v. Ironton, 41 Wis. 647, 656; Prideaux v. Mineral Point, 43 Wis. 513, 523; McGrath v. Bloomer, 73 Wis. 29, 31, 40 N. W. 585. 2. The next assignment of error is predicated on the refusal of the trial court to submit to the jury in the special verdict questions whether the trench was guarded by the use of proper lights, or otherwise, so as to prevent danger; whether such lights or either of them had been removed or extinguished ; and whether, if so, that was due to negligence of the defendant. In present case this was mere cross-examination of-the jury. The question submitted was whether the street “was in a reasonably safe condition for public use;” and this question, together'with the next relating to notice and time to remedy defects, under the instructions, fully covered and included [559] all of the elements asked to he submitted by these three questions. The jury were told to consider what harriers had been erected, what lamps had been supplied, and whether those lamps or either of them had become extinguished, and whether, as they found all of such facts to be, the result was a condition of reasonable safety for persons traveling the street in the exercise of due care; also whether such insufficiency as they found to exist had occurred so recently as to excuse defendant from curing it. The form of the special verdict is very much in the discretion of the court, and, in all ordinary cases of injury from alleged defects in highways, the question submitted by the court is sufficient to cover all the elements suggested by these requested questions. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Byington v. Merrill, 112 Wis. 211, 88 N. W. 26; Baxter v. Krainik, 126 Wis. 421, 105 N. W. 803. True, there may be facts put in issue by the pleadings of such a character that, in the absence of request for their special submission, they might be deemed covered adequately by the general question, but which should be submitted by separate question if so requested. Schrunk v. St. Joseph, 120 Wis. 223, 229, 97 N. W. 946; Jenewein v. Irving, 122 Wis. 228, 235, 99 N. W. 346, 903; Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777. But those now under consideration are not at all of that character. In the first place, the existence or nonexistence of a light or lights is not in issue by the pleadings, the only allegation therein being the existence of a trench not properly inclosed or guarded by other proper precautions, which is met merely by the general denial. Besides, the jury were so carefully instructed that they must have passed upon these questions in answering the general question which was submitted to them by the court. 3. We can discover no ground for reversal in the error assigned-upon ultimately refusing to join as parties defendant the persons who, under license from the city, dug this trench, and who, by virtue of an ordinance and bond, were required [560] by the city to take certain specified precautions and to reimburse tbe city for any damages wbicb might fall upon it by reason of tbeir default therein. The liability of such third parties was at best secondary, and was a liability on contract to the city. Their presence or absence in the present action could have no effect upon the rights of the plaintiff or the liability of the city to him. Hence the defendant is in no wise prejudiced by the refusal of the court to -join them as additional defendants, even if such joinder were permissible, which we do not decide. We find no prejudicial error, and, therefore, By the Court. — Judgment affirmed.